In the 60-plus days (!) since the beginning of the second Trump term, it often feels like the American people and our institutions have been overwhelmed by the speed and scope of illegality and authoritarianism spewing from the White House. But if there is one project of the administration that threatens us the most, it may be the Executive Order the White House released on March 26th, which claims to “Protect the Integrity of American Elections.” In reality, if implemented it could do the exact opposite, suppressing the vote nationally and threatening unlawful purges.
"A man without a vote is a man without protection." - Lyndon B. Johnson
False Claims of Authority… Again
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators. (Constitution of the United States, Article 1, Section 4)
You may notice what is missing here: any mention of the President. The Elections Clause clearly gives the States authority over the conduct of elections, an interpretation that has been upheld by mountains of precedent and supporting law.
Trump’s workaround - one that is becoming increasingly familiar - is to coerce the states under the threat of withholding billions in federal funds. Like so many of the Administration’s actions, this is patently illegal - the Executive has no authority to interfere with federal funding allocated by Congress to the States. The question remains, will either the courts or the state governments push back?
What’s in the Trump “Elections” EO?
The executive order seeks to compel all states to implement new voting ID restrictions of the type already familiar to New Hampshire residents and other GOP-controlled states. But the EO goes further, including some specific measures that suggest a more coordinated attack on our voting rights.
Proof of Citizenship Required for Registration
The Trump Elections EO would require documented proof of United States Citizenship when registering to vote. The forms of acceptable documentation enumerated in the order - primarily A Birth Certificate or US Passport, including the voter's legal name, where the name must match exactly on all documentation. This introduces a host of issues for potential voters. Over 50% of the US population does not have a passport, and the process to acquire one via the State Department is time-consuming and for many, costly. It is estimated that over 21 million Americans do not have access to their birth certificate, with records having been either lost or destroyed in fire and other disasters. Married women who have taken their husband’s name may be turned away, as their current ID does not match the maiden name on their birth certificate.
Similar to the highly restrictive voting laws recently implemented in New Hampshire, such restrictions have the potential to cause widespread chaos in the voter rolls, and could significantly suppress the vote.
Mail-In Ballots Must Be Received by Election Day
While the laws regarding mail-in ballots vary from state to state, the long-accepted standard is that ballots are valid so long as they are postmarked by election day. The Trump EO would seek to restrict this to ballots received by election day. This could potentially disenfranchise thousands of voters, either due to confusion about the new rules, or failures within the already embattled postal service.
Ballots Cannot Use Barcodes or QR Codes for Recounts
A significant number of populous states, including some recent battleground states like Georgia, utilize electronic voting systems manufactured by companies such as Dominion, ES&S, and others. In the event of a recount or other scenario where the electronic vote count is called into question, these systems are capable of generating a printed record of the ballot, identified in the system by a unique barcode or QR code. The EO would dictate that states may not rely on outputs using these electronic codes for purposes of a recount. The order instructs states to “take appropriate action to review and, if appropriate, re-certify voting systems” under those new standards within six months of issuance.
Setting aside the legitimate question of why this demand is included in the order, in practical terms it would be borderline unworkable, and places substantial financial and regulatory pressure on both states, and the makers of these voting machines.
DOJ to Prioritize Voting Investigations Witch Hunts
The order instructs the Department of Justice to "prioritize prosecuting non-citizen voting and related crimes.” Again, a politically neutral reading of this directive might seem un-controversial… but when we weigh this against the actions and public statements of Attorney General Pam Bondi and FBI Director Kash Patel, the implications become far more sinister.
States Must Turn Over Voter Data to DOGE
One of the lesser-known requirements of the Executive Order is also potentially the most dangerous. In addition to the restrictions on registration and mail-in voting, the order would require states to hand over all their voter rolls data to The Department of Homeland Security, and the (not actually a government entity) Department of Governmental Efficiency, aka DOGE.
The first and most obvious objection is, what business does DOGE, an entity not approved or regulated by Congress, have digging into the voter rolls of the states? According to the Trump Administration, the group is to be tasked with identifying voter fraud and other (imagined) abuses. In practice, Musk's minions could easily cross reference this data with social media and other sources, and selectively purge any voters they choose. Voter purges are nothing new in GOP-controlled states, but these efforts have in the past been relatively blunt. With the digital resources available to Elon Musk, it would be possible to micro-target voters in key precincts to tip an election. Even if wrongly targeted voters take corrective action or vote via provisional ballots, the integrity of the vote could be irrevocably corrupted.
Who Has Our Back?
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. (Constitution of the United States, Article 4, Section 4)
One hopeful development was the immediate response from the ACLU and voting rights groups such as Common Cause, condemning the decision and announcing rapid court challenges to Election EO. While the Trump Administration has already proven its willingness to ignore or circumvent court rulings, the sheer size and scope of the proposed changes to our elections, the significant costs, and the potential extortion of non-compliant states, make this a very long plank for them to walk.
As we have seen so often in recent years, success in court isn’t always a matter of winning a particular verdict. How long does the case run? Does the court put a hold on injurious actions in the meantime? How long is the appeals process? Will our corrupt SCOTUS take up the case? How far would they go to prostrate themselves and overturn existing president? None of these are forgone conclusions, but we should be realistic about the risks.
The other potential channel for institutional pushback is from the state governments themselves. Here the odds are mixed at best. In New Hampshire, we have already seen a long, steady march by the Republican Party to suppress and limit the votes of individuals and constituencies they don’t like. We are all familiar with their patently disingenuous claims about protecting voting integrity and preventing (largely non-existent) fraud. Whether the state government will be quite as sanguine when the Federal government is imposing direct oversight of our elections is an open question.
We should also not assume that our friends and allies in Democratic-controlled states will fare any better. If there is a single, clear lesson of the last two months under Trump, it is that we cannot assume any politician or institution, even those we consider to be aligned with our views, will automatically stand up in the face of tyranny. Sadly, all too often the opposite has been true: Prominent Democratic-leaning law firms and major universities have capitulated in response to threats, even when they have highly winnable civil cases. Democratic mayors stand by while legal green card holders are snatched off their streets without a warrant. Senate leaders tell us we aren’t in a constitutional crisis yet, while at least one prominent governor has decided the best way to fight back is to start a podcast featuring softball chats with right-wing influencers.
This isn’t to say there aren’t any elected officials fighting back. Governors Janet Mills of Maine and J.B Pritzker of Illinois have clearly drawn lines in the sand, and so far stood firm. But we cannot rely on these shining examples to convince other blue-state governments to do the right thing. We must speak out, loudly and in numbers, to let them know in no uncertain terms: the people will not stand for this attack on our right to vote.
Perhaps more than any other abuse of power we have seen from the current regime, a rapid, coordinated, and powerful public response is essential if we want to restore our democracy. Once the extortion and threats begin, once a blue state breaks ranks and falls in line, turning over their voting records to DOGE, the odds of a free and fair election in 2026 and beyond may diminish rapidly.
Regardless of the obstacles, both in our own state and across the country, it is essential that we support both the civil rights organizations fighting this order in court, and encourage (or pressure) our elected officials to do the same, despite Trump’s gangster tactics. The integrity of our future elections may depend on the actions we take today to blunt Trump’s illegal power grab. We can’t let this one get past us.
We must remain a country of laws. Unfortunately the court system works so painfully slow. It is left to us in the meantime to resist and loudly protest.